Question: Seeing as the basic D'rashah of D'rishah va'Chakirah is written by Eidim Zom'min, in connection with both Dinei Mamonos and Dinei Nefashos, why do we need "Mishpat Echad"?

Answer: Because, if not for "Mishpat Echad", we would not extend D'rishah va'Chakirah to other Dinei Mamonos (besides Eidim Zom'min).

Clarification: Cases of theft, wounds, Kesubas Ishah, inheritance and gifts do not require D'rishah va'Chakirah either, to close the door (discourage) on Gazlanim.

Question: By the same token, Gezeilos va'Chavalos ought not to require Mumchin, like Hodo'os and Halva'os?

Answer #1: One does not need to worry about Mumchin regarding a Gazlan (like one does regarding Hoda'os ve'Halva'os) - since, at the slightest excuse (such as the fear that he will not find expert Dayanim) a person will hold back from lending his friend money; Whereas Mumchin will not encourage the Gazlan to steal, because he knows that the owner of the stolen goods will take the trouble to look for Mumchin to deal with his claim until he finds them.

Answer #2: Gezeilos va'Chavalos also require D'rishah va'Chakirah (not like we initially thought), and it is only Hodo'os ve'Halva'os that are precluded.

Implied Question: Then why does the Gemara at the beginning of 'Echad Dinei Mamonos' (32b) establish the Mishnah which requires D'rishah va'Chakirah specifically by K'nasos?

Answer: 'K'nasos' is La'av Davka; In fact, Gezeilos va'Chavalos are also referred to as K'nasos, like we find later in the Perek (Daf 13b), which states that were it not for R. Yehudah ben Bava, Dinei K'nasos would have become obsolete - and the Gemara is really referring to all matters that require three Dayanim.

Conclusion: However, Kesubas Ishah, the Dinim of inheritance and of gifts, and those of Nizkei Shor be'Shor are included in Hodo'os ve'Halvo'os and all those that are listed in Perek ha'Chovel (Bava Kama, 84b), we do their Shelichus and claim them in Bavel, and do not require Mumchin.

Question: We find however many cases where they judged Gezeilos va'Chavalos in Bavel - such as in the second Perek of Bava Kama (21a), by the case of a man who built a mansion on the trash-heap belonging to Yesomim, and by the case there of Chanan Bisha, who blew a trumpet into the ear of his 'friend', and in many other cases?

Answer: It may well that in all those cases the one forced the other to have his case adjudicated by either seizing his property or by demanding to have his case judged in Eretz Yisrael, like we find at the end of the first Perek of Bava Kama (Daf 15a).

Alternative Answer: Others explain that 'Gezeilos va'Chavalos' refers to Gezeilos that came about through Chavalos - where for example, two people who were fighting over something actually came to blows, until one of them stole something belonging to the other one. Such cases are uncommon in which case 'we do not do their Shelichus'.

Question: How could they judge Dinei Gezeilos, and in 'Eizehu Neshech' (Bava Metzi'a, 61a), how could they judge Dinei Ribis, when the Gemara at the beginning of 'ha'Gozeil Kama' rules that 'If Gazlanim and lenders of Ribis offer to pay, one is not permitted to accept from them?

Answer: The Gemara there however, clearly states that that Mishnah was learned in the days of Rebbi, which means, as Rabeinu Tam explains, that it applied only to his time (due to an episode that occurred then) and not before or afterwards ...

Proof: ... which explains why the Gemara only queries Rebbi from Beraisos that he himself taught R. Chiya (and not from Beraisos or Mishnahs that were perhaps learned before or after that period).

Explanation #1: Rashi explains that, seeing as they acted with permission, there is no difference between a non-Mumcheh and a Mumcheh.

Question: If that is so, then the Lashon 'Kol-she'Kein that you are closing the door ... ' is inappropriate. What the Gemara ought to have said is 'If so, you are closing the door ... '?

Explanation #2: The fact that the Gemara uses the Lashon 'Kol- she'Kein' implies that it is asking from the issue of 'Ne'ilas De'les' - that since you are worried about Ne'ilas De'les, we ought to say that it they erred, they are Patur, because if you obligate them to pay, they will not be willing to adjudicate in the firs place!

Question: What is the problem, seeing as the Dayan is only Chayav to pay if he actually takes the money or object and hands it over to the claimant, as the Gemara will explain in 'Echad Dinei Mamonos' (Daf 33a)?

Answer: The Gemara is asking specifically according to those who render him Chayav even if he does not hand it over.

Comment: Sometimes the Gemara asks this question, and sometimes it doesn't.

Explanation #1: Rashi explains that this is because he holds Eiruv Parshiyos is not written here.

Question: In that case, why do we need the Pasuk "be'Tzedek Tishpot Amisecha"?

Explanation #2: It would therefore seem that this goes even according to those who hold that Eiruv Parshiyos is written here.

Clarification: Since whoever has not learned is disqualified from judging, as is evident from the Gemara in 'Zeh Borer' (later on Daf 23a), where the Gemara queries R. Meir in the Mishnah who authorizes each litigant to disqualify the judge chosen by his disputant, and answers that the Tana is speaking about the Syrian courts, which, according to Rashi, means that the judges were ignorant.

Implied Question: ;;; and even though the Rabbanan argue with R. Meir there, and say that this is only if the litigant can prove that the his judge is a relative or that he was previously disqualified (but not otherwise) ...

Answer: ... that is only once they have been appointed as court judges.

Clarification #1: Here too, the Gemara's Kashya was based on 'Ne'ilas De'les' (See above DH 'Ela me'Atah') - Since you are concerned about ignorant judges, the ruling ought to have been 'Ta'u Lo Yeshaleimu', in order not to distance those who are learned, and then it would be impossible that there is not at least one who has learnt? ...

Clarification #2: ... and the Gemara answers 'Kol-she'Kein di'Nefishi!' - that is precisely why we make them pay, to force them to learn the Dinim of Mamonos in order not to err, in case they will then be obligated to pay.

Ruling: The B'hag rules like Shmuel (despite the fact that Rava disagrees with him), because Rav Nachman (on Daf 5a) concurs with him.

Question: But this is difficult from the Gemara in the second Perek of Kesuvos (Daf 22a & b), which asks, with reference to 'Three judges who sat down to substantiate a Sh'tar and one of them died' - 'Perhaps the Rabbanan of bei Rav Ashi hold like Shmuel'?, implying that the Halachah is not like him?

Answer: What the Gemara there means is like Shmuel by Kiyum Sh'taros, where the Halachah is definitely not like him, since even Rav Nachman who concurs with Shmuel regarding 'Shenayim she'Danu ... ', concedes that Kiyum Sh'taros requires three Dayanim, like the Gemara says in 'Chezkas ha'Batim'.

Precedent: Similarly in 'Zeh Borer' (later on Daf 30a & b) regarding 'Sh'tar Odisa', where the Gemara suggests that perhaps the Rabbanan of bei Rav Ashi hold like Shmuel?, the Gemara is referring to Shmuel's ruling regarding 'Odisa', which one wrote in front of two Dayanim without a Kinyan, which is not Halachah, as the Gemara states there - 'Before two with a Kinyan one writes (an Odisa), ot before three, even without a Kinyan', as the Gemara explains there (on Daf 29b).

Clarification #1: This cannot refer to Shor she'Hizik Shor, which, we learned in 'ha'Chovel' (Bava Kama, 84b & 85a) can be claimed in Bavel, and does not require Mumchin.

Clarification #2: That being the case, the Chatzi Nezek of which it speaks cannot go according to R. Akiva, who maintains there (on 33a) that a Tam that gores a person pays Nezek Shaleim.

Retraction: On second thoughts however, it can even be speaking by Shor de'Azik Shor, bearing in mind the Gemara's conclusion there (on 84b) that it is only Nizkei Shein ve'Regel (which are Mu'ad from the beginning) that one can claim in Bavel, but not Nizkei Keren (about which the Gemara states 'Ein Mu'ad be'Bavel').

Explanation #1: Rashi explains that this is because it is needed to teach us 'Mumchin'.

Question: But the Gemara concludes that everybody agrees that 'Ein Dorshin Techilos', and R. Yashiyah will say to you that if it (the first "Elohim") did not come to add one judge, then it ought to have written "el ha'Shofet". But how would we then know 'Mumchin', seeing as "Shofet" does not imply 'Mumchin', as Rashi himself explains - (and R. Yonasan) will explain that it is merely an expression Lashon (as people tend to say) 'Someone who has a Din Torah should go to the Dayanim and not to a Hedyot'?

Explanation #2: It therefore seems that what the Gemara means is that we do not Darshen the first as a number - even it is not needed for Mumchin.

Precedent: ... and this is also implied regarding the Machlokes between R. Shimon and the Rabbanan on the following Daf in connection with "ba'Sukos" "ba'Sukos" "ba'Sukos". according to one Lashon in the Gemara in Sukah, both opinions hold 'Yesh Eim le'Mesores', and they argue over 'Dorshin Techilos'. The understanding there is that 'S'chach' does not require a Pasuk, yet we remove one "ba'Sukos" for itself, according to the opinion that does not Darshen Techilos, and do not use it for a number.

Question: The question that one must ask however, is with regard to the cases mentioned on the following Daf (4a) "Keranos" "Keranos" "Keranos" and "le'Totafos" "le'Totafos" "le'Totafos" (on Daf 14b), both of which we Darshen for their numbers, and nobody there says 'Ein Dorshim Techilos'?

Implied Question: And the reason that R. Yehudah himself in Perek ha'Chalil (Sukah, 51b and 52a), in connection with the Shul of Alexandria of Mitzrayim, which had seventy-one gilt chairs, corresponding to the seventy-one elders of the Sanhedrin ha'Gadol is ...

Answer: ... because Moshe Rabeinu was above them. In fact, every Sanhedrin ha'Gadol had a supreme expert who was not counted among the seventy.

Clarification: The Pasuk must be talking about Dinei Nefashos, because it writes "Do not go after the majority for bad", implying something that is bad for all concerned - whereas in money matters, what is bad for one is good for the other.

Implied Question: ... and even though the Gemara in 'Echad Dinei Mamonos' (33b) refers to Dinei Nefashos as a merit for the Go'el ha'Dam ...

Answer: ... nevertheless, in real terms it is bad, seeing as the Go'el ha'Dam gains nothing from the murderer's death.

Implied Question: And even though when Eidim Zom'min are declared Chayav, the defendant is let off the hook ...

Answer: ... nevertheless, they could have got off the hook via Hakchashah (if the witnesses would have been contradicted) without the need for them to become Zom'min.

Alternative Explanation: Alternatively, the Pasuk must be referring to Dinei Nefashos, based on the D'rashah cited earlier (in connection with Dinei Nefashos) 'Your majority for the good is not like your majority for the bad', a statement which makes no sense regarding Dinei Mamonos, where, what is bad for one is good for the other!

Question: At the beginning of 'ha'Mocher Peiros' (Bava Basra, 92b) Shmuel states that in money matters one does not follow the majority. Why does he not learn a Kal-va'Chomer from Dinei Nefashos, like R. Yashiyah does here?

Suggested Answer: ... and one cannot answer that the Din of 'Rov' by Nefashos is confined to a visible Rov ('Ruba de'Isa Kaman', like here), but does not apply in the case of an invisible one ('Ruba de'Leisa Kaman' [which is actually a Chazakah]), which Shmuel is referring to ...

Refutation: ... because, at the beginning of Perek Sorer u'Moreh (later on 69b) it is implied that the Din of Rov applies by Dinei Nefashos across the board - for example 'Most women give birth at nine months' and 'Most people err regarding the birth of the New Moon'.

Answer: We are therefore forced to say that the Rov that 'Most people purchase an ox for plowing (the case to which Shmuel is referring) is not as good a Rov as those mentioned earlier, which is why we do not rely on it with regard to Dinei Mamonos.

Question: The Gemara's question that Sanhedrin ha'Gadol should comprise a hundred and forty-one is justifiable, since seventy-one is written in the Torah (as we will learn at the end of the Perek). But how can we justify the Gemara's question that Sanhedrin ha'Katan ought to comprise forty-five, seeing as the Torah only actually writes twenty, and no more, as we we will learn at the end of the Perek (on Daf 17a) 'A congregation (ten judges) judges and a congregation saves'. Consequently, if twenty refers to the conclusion of the Din, then thirty-nine ought to suffice. (See Tosfos ha'Rosh).